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The Sims Social (Photo credit: Wikipedia)

Last week, Electronic Arts ($EA) sued Zynga ($ZNGA) for copyright infringement because Zynga's "The Ville" game allegedly takes too much of EA's "Sims Social" game. Lawsuits like these are rare in the games industry, for good reason. Imitation of other manufacturers' games is standard in the industry, and every major industry player does it frequently. As my peer Prof. James Grimmelmann wrote, "the [games] industry has developed a dysfunctional culture of copycattery." Bringing a lawsuit that redefines the industry's practices about games imitation could lead to a counterproductive outcome. Even if EA wins this lawsuit (which I doubt), the resulting legal precedent could give more powerful tools to future plaintiffs suing EA for imitating their games. Because everyone in the industry lives in a glass house, the major industry participants (wisely) choose not to throw stones.

To win this lawsuit, EA will have to overcome some complicated aspects of copyright law. EA can't win simply by claiming that Zynga copied its basic game concept and that Zynga's in-game window dressing is substantially similar to EA's. Under copyright law, everyone is free to copy the basic game concept. And, per its standard practices, Zynga carefully changed many details in its execution of the game concept. EA is mostly complaining that Zynga didn't go far enough in making changes to those details, and its complaint does provide some examples where Zynga didn't appear to deviate very much from EA's precedent. But finding a few minor identical details, especially when the game concepts are identical (as they are legally entitled to be), doesn't make for a very strong complaint. (In this respect, I may disagree with my peer Prof. Greg Lastowka, who appears to have a more favorable gloss on EA's legal position).

Pushing the frontiers of copyright law is what makes the lawsuit so dangerous to EA. EA will need to make aggressive arguments about copyright law to fit the legal doctrines to its facts. It will either have to seek protection for its game concept--a losing proposition under copyright law. Worse, if EA does make progress on that front, the new legal precedent would substantially undermine the current industry-standard practices about imitation and throw the games industry into a tailspin. More likely, EA will argue that Zynga needed to change its execution even more if it wanted to avoid infringement. But for EA, winning this legal argument would implicitly mean that EA will have to do more development work next time it wants to imitate someone else's game. So EA's desired baseline practices for Zynga will, when applied to EA in future lawsuits, likely jack up EA's development costs in the future as well.

Undoubtedly, this is a lawsuit that Zynga can't afford to lose. Zynga has built its business on imitating other people's games, and any adverse ruling about that practice could harm Zynga's business substantially. But EA is threatening to destabilize the current industry détente about game imitation, and any resulting litigation chaos could end up eroding EA's profits. Further, if EA redefines the legal standards for game imitation to make imitation more risky, then it's just sharpening the knives of future copyright owners seeking to carve it up. Thus, I see this as a lawsuit that EA can't afford to win.

Given that neither Zynga nor EA will want to see this case result in a definitive legal precedent, this case will almost certainly settle. The most likely outcome is that Zynga will make some minor and low-cost changes to its game that placate EA, thus allowing EA to claim victory while still preserving Zynga's basic implementation. Thus, the big-picture legal questions about the legitimacy and boundaries of game imitation are almost certainly not going to be resolved here.